18 Nev. 436 | Nev. | 1884
By the Court,
The original parties defendant iu this cause were the same as in Simpson v. Williams, ante. The appeal" in this case, as in that, is directed against the decree rendered in favor of respondent, Williams. To each suit- he defended as owner of the Rage or Withington ranch, on Dnckwater creek. The questions presented upon appeal are the same in each case, except the question of prior appropriation of the water. The different plaintiffs acted independently of
In determining the question of the time when a right to ' water by appropriation commences, the law does not restrict the appropriator to the date of his use of the water, but, applying the doctrine of relation, fixes it as of the time when he begins his dam or ditch 'or flume, or other appliance by means of which the appropriation is effected, provided the enterprise is prosecuted with reasonable diligence. During the year 1867 Withington did no particular act manifesting an intention to appropriate the water, further than to maintain its flowage upon the land. It was . unnecessary for him to do more. The diversion made by Page was suitable to his contemplated appropriation, and a different diversion would not have strengthened his claim. We do not think that, in exercising reasonable diligence to appropriate the water, Withington was bound to use it for irrigation during the year 1867. It may have been impracticable by reason of the season, or the difficulties incident to an unsettled country, to have applied the water to irri
The remaining exceptions will not be particularly considered. They were determined adversely to appellant in Simpson v. William,s, ante, and the same ruling will be made in this case.
The judgment and order of the district court are affirmed.